2021 Abstracts Stage 3

Can the common and civil law legal codes be situated within coherent philosophical accounts of judgement and justice and what is the preferable system?

Lucy Ghaidan, 2021, Stage 3

In this project, I explore the contrasting legal systems, common law and civil code and compare them to my two principal philosophers:

– Jean-François Lyotard
– Plato

Additional philosophers I studied:

– Immanuel Kant
– Ludwig Wittgenstein
– Aristotle
– Socrates

The questions I focused on:

• Can we have a politics with or without a true essence of justice?
• Can we judge based on opinion, or based on prior criteria?
• Do legal systems work within situational context or universal formulas?
• What are the philosophical attributes embedded within legal systems?

I essentially wanted to establish the central aspects of the legal systems I am studying regarding how they view judgement. This was examined by determining whether judgement is based on the conformity of statutes and legislations or based on precedent. I determine that the civil law system’s rigid structure gives judges limited say in the outcome of cases as they abide by the law’s statutes. On the other hand, the common law works on precedent, using past cases to determine the conclusion of a case. Additionally, I compared the philosophical attributes of these two legal systems to the two philosophers I studied. I resolved that the common law generally related to Lyotard’s situational school of philosophy; judgement is based case-by-case without regard to prior criteria. Furthermore, Plato’s true essence of justice claims a universalism of judgement which coincides with the civil law system. Concluding, I argue the superiority of Lyotard’s philosophy and the common law system over the contrasting school of philosophy and legal system.

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